King v. Evans, Civ. A. No. C85-3745A.

• Decision Date: 30 June 1986
• Docket Number: Civ. A. No. C85-3745A.
• Citation: 640 F. Supp. 107
• Parties: Calvin KING, Plaintiff, v. David C. EVANS, Bobby York, Tommy York, Bruce Redding, Spalding County, Defendants.
• Court: U.S. District Court — Northern District of Georgia

640 F. Supp. 107

Calvin KING, Plaintiff, v. David C. EVANS, Bobby York, Tommy York, Bruce Redding, Spalding County, Defendants.

Civ. A. No. C85-3745A.

United States District Court, N.D. Georgia, Atlanta Division.

June 30, 1986.

Ralph Goldberg, Atlanta, Ga., for plaintiff.

Victoria H. Soto, Asst. Atty. Gen., Atlanta, Ga., Richard L. Collier, Beck, Owen & Murray, Griffin, Ga., for defendants.

ORDER

FORRESTER, District Judge.

This action is before the court on the renewed motion of defendant David C. Evans to dismiss the complaint as to him. This court, by order entered on March 25, 1986, specifically directed the plaintiff to file a more definite statement of the factual bases for his claim against defendant Evans, since from the original complaint it appeared that plaintiff's claim sounded entirely in a theory that defendant Evans was negligent. Plaintiff's response to this court's order was to file an amended complaint which in every essential is in haec verba with the amended complaint which this court ruled required clarification. The single exception is the addition by plaintiff in paragraph fourteen of the new amended complaint, filed April 9, 1986, of the word "recklessly" with regard to David Evans' conduct. Specifically, the plaintiff alleges that David Evans "ratified" conduct of the other defendants by "recklessly" failing to train and supervise officers of the Spalding County Correctional Institute.

The court is unsure exactly what plaintiff meant to convey by including the word "recklessly" in the complaint. Black's Law Dictionary, Fourth Edition, defines "reckless" as "careless, heedless, inattentive; indifferent to consequences." The Second Restatement of Torts, § 500, defines "reckless" as the intentional doing of an act or failure to do an act, which a reasonable man would know would create a certain or reasonably certain likelihood that adverse consequences would result.

These definitions of the adjective plaintiff has chosen to add to the complaint shed no additional light on the issue raised in this court's order of March 25, 1986. The Supreme Court held in Daniels v. Williams, ___ U.S. ___, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) that "mere lack of due care by a state official" is insufficient as a basis for liability pursuant to 42 U.S.C. § 1983. Rather, the guarantee of due process applies only to "deliberate decisions of government officials to deprive a person of life, liberty, or property." ___ U.S. at ___, 106 S.Ct. at 665 (emphasis in original). See also Pembaur v. City of Cincinnati, ___ U.S. ___, 106 S.Ct. 1292, 89 L.Ed.2d 452 No. 84-1160 (1986) (municipal liability attaches under section 1983 only where officials make "a deliberate choice to follow a course of action from among various alternatives").

Because the Court held in Daniels that the need for due process attaches only where a "deliberate" decision has been made to deprive a person of life, liberty, or property, mere "carelessness" on the part of the defendant official is insufficient to establish liability. Instead, what is required is a showing that the defendant official acted "deliberately," a choice of words which implies both a volitional choice to act or not act, and an awareness that the act is certain or substantially certain to deprive the plaintiff of life, liberty, or property. See Restatement (Second) of Torts § 8A, Comment b; Davidson v. Cannon, ___ U.S. ___, ___, n. 2, 106 S.Ct. 668, 673, n. 2, 88 L.Ed.2d 677 (Blackmun, J., dissenting). This is a different standard than showing mere "recklessness" on the part of the defendant official, which requires only proof that a reasonable man would have appreciated the great degree of risk. Restatement (Second) of Torts § 500, supra. In order for an act to be "deliberate," on the other hand, the particular actor must be shown to have been aware that adverse consequences from his action were certain or substantially certain. In Davidson v. Cannon, ___ U.S. ___, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), a "reasonable man" might well have concluded that the plaintiff was endangered by the threatening note. Nevertheless, the Court held that no section 1983 liability would lie, since the plaintiff failed to allege that the defendants acted out of "deliberate or callous indifference" to plaintiff's needs. The Court focused on the defendants' conduct, not that of a "reasonable man." The choice of the word "deliberate" by the majority in Daniels is paralleled by the "deliberate indifference" standard of Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). There, the Court held that in order for a prisoner to bring a section 1983 action under the eighth amendment relating to his medical needs, he must show that prison officials both knew of his needs and were deliberately indifferent to them. Similarly, the notion of a "deliberate" decision to deprive a person of life, liberty or property connotes both an awareness that a given act or inaction is certain or substantially certain to deprive a person of those rights and a decision to act or not act in spite of that knowledge. See Daniels, ___ U.S. at ___, 106 S.Ct. at 666 (Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) creates a section 1983 action due to "deliberate" decision of officials to deprive inmate of good-time credit).

For the foregoing reasons, the court concludes that plaintiff herein must establish a deliberate act or omission on the part of defendant Evans which Evans knew with substantial certainty would result in a prison guard under his control improperly using mace. This is not a "state of mind" requirement, rejected by the Court in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), in the sense of requiring an intent to injure this...